Delhi High Court

Smt. Lakshmi Sharma vs Smt. Droptai Devi & Ors. on 18 August, 2009

Author: Aruna Suresh

*             HIGH COURT OF DELHI AT NEW DELHI

+      IA No.10977/2007 & CS (OS) No.1418/2007

                             Date of decision : 18th August, 2009

SMT. JAI LAKSHMI SHARMA            ..... PLAINTIFF
              Through : Mr. H.S. Gautam, Advocate


                                  Versus


SMT. DROPATI DEVI & ORS.             ..... DEFENDANTS
              Through : Mr. N.S. Negi, Advocate for
                        defendants No. 1, 2, 3 & 6.
                        Mr. Harpreet Singh Sodhi, Adv.
                        for defendants No.5 & 7.
                        Mrs. Meena Sharma, Adv. for
                        defendant No.8.

%
       CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?               Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                     Yes

                                  ORDER

ARUNA SURESH, J.

IA No.10977/2007 (Order 7 Rule 11 CPC)

1. Plaintiff is the daughter of defendant No.1 and

defendants No. 2 and 3 are her unmarried brothers,

whereas remaining defendants except defendant

No.8 are married sisters and defendant No.8 is her

unmarried sister. Defendant No.1 is widow aged

about 80 years. Plaintiff has filed the present suit

against all the defendants seeking, declaration,

partition and permanent injunction in respect of

property known as Shiv Bari, Shri Bhola Mandir,

Dhauli Piao, situate at Village Paushangi Pur,

Najafgarh Road, forming part of Khasra No.5/23,

10/2/1 and 3/1 claiming herself to be the co-owner

of the said property having 1/9th share in the same.

2. One Ram Pat had a son named Bhola. Ram Pat was

alleged to be the owner of the suit property which

after his death was succeeded by Bhola. Bhola was

married to Champa. Defendant No.1 was born out

of the wedlock of Bhola and Champa. Bhola pre-

deceased Champa. After the death of Bhola,

Champa Devi being the wife of Bhola received the

said property. After Champa's death defendant

No.1 being the sole legal heir became owner of the

property by inheritance. Plaintiff and other

defendants are children of defendant No.1.

3. Claim of the plaintiff is that the suit property is an

ancestral property of the plaintiff and the

defendants and therefore she has 1/9th share in the

property and accordingly has filed the present suit.

Defendants No. 1, 2, 3 and 6 have contested the

suit of the plaintiff on various grounds and one of

the objections raised in the written statement is that

defendant No.1 by virtue of Section 14 of the Hindu

Succession Act, 1956 (hereinafter referred to as Act)

became absolute owner of the property and plaintiff

therefore cannot seek any partition of the property

and the suit deserves dismissal under Order 7 rule

11 CPC.

4. Present application under Order 7 Rule 11 CPC has

been filed by the defendants seeking rejection of

the plaint on the grounds contending inter alia that

Smt. Champa Devi had executed a registered

relinquishment deed in respect of suit property in

favour of defendant No.1 vide relinquishment deed

No.1185 dated 25.2.1955 and land was mutated in

the name of defendant No.1 vide mutation No. 333

dated 20.2.1955 and therefore as per the revenue

record defendant No.1 received the property by

virtue of relinquishment deed executed in her

favour and she became owner of the property.

After coming into force of the Hindu Succession Act

as amended in 2005 defendant No.1 became

absolute owner of the property in suit and therefore

neither the plaintiff nor any of her sons and

daughters have any right, title or interest in the suit

property. The ancestral property situate at Village

Gubhana, Bahadurgarh was succeeded by all the

legal heirs of late Sh. Akshma Dutt, father of the

plaintiff and defendants No. 2 to 8 and her share in

the said property has already been disposed of by

the plaintiff vide registered sale deed dated

10.8.2006 for a sum of Rs.9 lacs. Since claim of the

plaintiff is barred under the provisions of Section 14

of the Act, the suit cannot be proceeded with and is

liable to the rejected under Order 7 Rule 11 (d) CPC.

5. Plaintiff had contested this application but has not

filed any formal reply to the same.

6. It is argued by Sh. H.S. Gautam, counsel for the

plaintiff that suit property was owned by Ram Pat.

After his death, the property devolved upon Bhola,

his son by succession. Bhola pre-deceased his wife

Champa and his daughter Dropati, defendant No.1.

The suit property being ancestral property was

inherited by Champa and Dropati and after the

death of Champa defendant No.1 held the ancestral

property as joint owner with the plaintiff and

defendants No.2 to 8. He has argued that since suit

property is an ancestral property plaintiff has an

equal share in the said property and has claimed a

declaration to the effect that she holds 1/9th share in

the property and also is entitled to claim partition in

the property, specially when plaintiff is in

possession of a shop in the said property and

therefore, according to him the suit filed by the

plaintiff is maintainable and is not barred by any law

as alleged.

7. Mr. N.S. Negi, learned counsel for defendants No. 1,

2, 3 & 6, has argued that by virtue of Section 14 of

the Act defendant No.1 has become the absolute

owner of the property in suit and therefore, the suit

is barred by Section 14 of the Act and is not

maintainable.

8. The admitted fact are:

(i) Ram Pat owned suit property known as

Shiv Bari, Shri Bhola Mandir, Dhauli Piao,

situate at Village Paushangi Pur,

Najafgarh Road, forming part of Khasra

No.5/23, 10/2/1 and 3/1. He left behind

only one legal heir Bhola, his son. Bhola,

therefore, received this property by

succession and became the owner of the

property in suit.

(ii) Bhola pre-deceaed his wife Champa and

his daughter Dropati, defendant No.1.

After his death Champa and Dropati

became joint owners of the suit property.

(iii) Chapma has since died and after

Champa's death the entire property has

devolved upon defendant No.1.


               (iv)    As per the revenue record, the entire suit



                       property           stands     in    the     name      of

defendant No.1 since the year 1955 as it

stood transferred in her name after the

death of Champa.

(v) Plaintiff is in possession of a shop

forming part of the property in suit as

shown in green colour in the site plan

Annexure P-2.

9. Hindu Succession Act 1956 was amended by the

Hindu Succession (Amendment) Act, 2005. The

amendment to the Act came into force on 9th

September, 2005. Section 14 of the Act was

enforced even before the amendment to the Act

became operative. However, by virtue of Section 6

of the unamended Act after the death of male Hindu

who had an interest in Mitakshara coparcenary, his

interest in the property devolved by survivorship

upon the surviving members of the coparcenary and

not in accordance with the other provisions

contained in the Act. In case where deceased had

left him surviving female relative specified in class I

of the Schedule or a male relative specified in that

class who claimed through such female relative, the

interest of the deceased in the Mitakshara

coparcenary property devolved by testamentary or

intestate succession, as the case may be, under the

Act and not by survivorship.

10. After the amendment of Section 6 of the Act, a

daughter of a coparcener governed by Mitakshara

law becomes a coparcerner in her own right by birth

in the same manner as the son and she has been

given same rights in the coparcenary property

which she would have enjoyed had she been a son.

In short, by virtue of the amended Section 6 of the

Act, a female Hindu governed by Mitakshara law has

been given all the rights and liabilities of a Hindu

Mitakshara coparcener including her right to dispose

of her share in the property by testamentary

disposition.

11. Section 6 as amended has to be now read in

conjunction with Section 14 of the Act. For

convenience sake, Section 6 and Section 14 so far

as relevant for the purposes of the present case are

reproduced as below:

"Section 6. Devolution of interest in coparcenary property.--(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu Family governed by the Mitakshara law, the daughter of a coparcener shall,--

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, an any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidated any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu

Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu Family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--

(a) the daughter is allotted the same share as is allotted to a son;

(b)....."

Section 14. Property of a female Hindu to be her absolute property.-- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhan immediately before the commencement of this Act.